Commentary: A Narrow Victory for NSA Surveillance Opponents

By Michael Hirsh

December 19, 2013

Don't give up the crown jewels of America's surveillance program, including bulk collection of telephone data, but add enough new transparency and legal restrictions to fulfill the public's right to privacy and civil liberties. That's the bottom line of a 304-page report released late Wednesday by President Obama's special review commission on the National Security Agency's controversial spying programs.

The report, titled "Liberty and Security in A Changing World," supplies a narrow victory to NSA leaker Edward Snowden and his supporters, but not much more than that, in that its recommendations would leave the NSA's mass surveillance programs largely intact.

Among the important changes recommended were that the controversial collection of mass amounts of data be conducted by the private sector rather than the government; that new rules restrict the ability of the Foreign Intelligence Surveillance Court (FISC) to compel telephone service providers and other third parties to disclose private information to the government and how the FBI issues "National Security Letters" to compel individuals and organizations to turn over private records; and that a public interest advocate be created to appear before the Foreign Intelligence Surveillance Court.

White House spokesman Jay Carney said the administration would likely adopt some recommendations and reject others. The administration has already rejected the panel's proposal to separate control of the NSA and Cyber Command, but it is likely to agree to its recommendation to try to come to new agreements with foreign leaders on limiting surveillance.

On the collection of so-called "metadata," the current system "creates potential risks to public trust, personal privacy, and civil liberty," the report says, adding that it endorsed "a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes."

Nonetheless, the panel continued to embrace the need for that program, Section 215 of Foreign Intelligence Surveillance Act, and suggested that such searches be tailored only under a rather vague standard, in order "to serve an important government interest." It also affirmed the need for Section 702, which authorizes the search of emails abroad.

The report was produced by a relatively intelligence-friendly group of former officials and legal experts consisting of ex-counterterrorism coordinator Richard A. Clarke; Michael Morell, the former deputy director of the CIA; Geoffrey Stone, a University of Chicago law professor; Peter Swire, an expert in privacy law at the Georgia Institute of Technology, and Obama's former regulation czar, Cass Sunstein.

Supporters of the NSA program say that Section 215, which allows for vacuuming of telephonic data, is needed as a discovery tool in order to discover new terrorist plots at a time when the threat is far more diffuse and harder to detect.